01a55110
12-09-2005
Natalie V. Bryant, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Natalie V. Bryant v. Department of Homeland Security
01A55110
December 9, 2005
.
Natalie V. Bryant,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A55110
Agency No. I-03-E-068
DECISION
Complainant filed an appeal with this Commission from a June 28, 2005
agency decision finding no discrimination.
Complainant, a GS-7 Program Assistant, alleged that the agency
discriminated against her on the bases of race (Black), sex (female),
and age (D.O.B. September 1, 1957) when on January 17, 2003, a supervisor
authored and disseminated an electronic mail stating that complainant
had used the supervisor's government credit card without authorization
and that as a result of the electronic mail, her character and name
were slandered and defamed and she was also denied a promotion to the
position of Program Analyst, GS-343-9/11, Vacancy Announcement No. ER MP &
RP 02-130.<1>
At the conclusion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ) or,
alternatively, to receive a decision by the agency. In a letter, dated
October 27,<2> the agency stated that complainant failed to request a
hearing and it would issue a decision.<3>
In its decision finding no discrimination, the agency stated that it
had provided a legitimate, nondiscriminatory reason for its action.
The agency noted that the Supervisory Deportation Officer (SDO) had
explained that his intent in sending the January 17, 2003 electronic
mail message was to advise management of possible systemic problems if
others had missing receipts and G-514 forms and, also, to provide the
Deputy Field Office Director (DFOD) with the credit card information
in the event that the DFOD needed the information during the time the
SDO was to be absent from the office. The agency also stated that
although complainant claimed that the SDO's electronic mail message
adversely affected her future employment because it reflected upon her
professional competence and influenced the selecting official's decision
to choose the selectee, the SDO was not complainant's supervisor and had
no knowledge that complainant was applying for the position. The agency
also noted that there was also no evidence that the DFOD was contacted
by the selecting official for the Program Analyst position. The agency
further noted that the selectee was a Black female and that the position
was signed off on eight days before the January 17, 2003 electronic mail.
The record contains complainant's affidavit and rebuttal affidavits.
Therein, complainant stated that in December 2002, she prepared a form
G-514 to purchase office supplies. She stated that the form was signed
by her supervisor, the DFOD, and the Administrative Officer of Supply
(AOS). Complainant's affidavits also reveal that the AOS and the Supply
Clerk instructed complainant to approach the SDO to ask him to use the
SDO's government issued credit card instead of using the form G-514 to
purchase supplies. Complainant's affidavits reveal that on December 10,
2002, the SDO gave complainant authorization to use his government issued
credit card. The affidavits reflect that the office supply store where
complainant ordered the supplies did not have all the items so it made
two shipments, with the second order billed on a separate invoice three
days later. Complainant stated that the SDO had worked with purchases
for several years and knew that all orders were not always shipped at the
same time. Complainant asked in her affidavit why would she jeopardize
more than 21 years of government service over $23.00. Complainant also
stated that when her supervisor called her into his office concerning
the SDO's electronic mail, he was screaming and yelling at her.
Complainant also stated in her affidavits that because she is a 45-year
old, Black female, the SDO felt that he could accuse her of stealing his
credit card number to purchase items for her personal use. She further
stated that if she were a White female or White male, the SDO would not
have questioned the charge. Complainant stated that the SDO, a White
male, had a history of harassing her, had a racist attitude towards her
and that he looked at her as if he hated her. She disputed the SDO's
statement that the two had a good working relationship. Complainant
recalled an incident when she made a mistake on time and attendance and
the SDO called a staff meeting and pointed out complainant's error instead
of speaking to her privately. Complainant stated that the same mistake
was made by another timekeeper a year prior to her coming to work for the
Immigration and Naturalization Service. Complainant also stated that the
defamation of her character occurred daily. Complainant noted that she
had an undergraduate degree, 21 years of excellent federal service, had
received ratings of outstanding for work and numerous Superior Service
awards, monetary awards, Financial Statement Clean Audit Awards and
time-off awards. The record contains copies of complainant's ratings
and awards.
Contained in the record is a January 17, 2003 electronic mail message
sent from the SDO to several managers, including the DFOD regarding
the subject of government purchase card problems. The SDO stated in
the electronic mail message that there were problems with the month's
purchase card statement, noting that there were several items for which
the SDO had not received Forms 514 or receipts and at least one where
he did not know of anyone having authorized the use of his government
credit card. The affidavit of the SDO reflects that in an attachment
to the January 17, 2003 electronic mail, the SDO stated that he wondered
whether complainant had ordered online three days after the first order
and had mistakenly used his credit card.
In a March 7, 2003 electronic mail, the SDO specifically noted to
complainant, the DFOD and other managers, that he did not intend his
electronic mail to imply that complainant had deliberately made a charge
against his government credit card without authority. The SDO explained
that he had sent the January 17, 2003 electronic mail message on a Friday
afternoon after office hours before having to leave the following Monday
on temporary duty. He stated further in his March 7, 2003 electronic
mail message that because he was leaving on Monday on a temporary duty
assignment, he needed to turn in the credit card statement prior to his
leaving, and that he needed to indicate that there was a charge on his
credit card for which he did not have a receipt or G-514.
The record contains selection documents and the promotion package.
The Selection Certificate reflects that two candidates were certified for
consideration for selection. One was the selectee, a Black female under
40, and the other, who appears to be a White male, was also under 40.
The Selection Certificate, dated December 19, 2002, was sent from the
Assistant District Director, Management to the Atlanta District Director.
The selecting official was the Assistant District Director, Inspections.
In a January 8, 2003 letter, the Assistant District Director, Inspections
recommended the selectee and stated that he found her to be the best
qualified.
The selection documents also reflect that complainant's rank was number 1
in the overall rating, that the selectee was number 3 and the White male
ranked at 5. The documents also reflect that of the applicants for the
position, only the selectee held the position title of Program Analyst.
The January 17, 2003 electronic mail message reflects that it was not
sent by the SDO to the selecting official or the Assistant District
Director, Management. The electronic mail message also reflects that the
SDO stated in his message that he and the DFOD might consider meeting
with the Assistant District Director, Management, to come up with new
credit card procedures.
The affidavit of the DFOD reveals that complainant told him that she
had applied for several positions but had not been selected. When the
DFOD asked complainant if she had used him as a reference since no one
had telephoned the DFOD, complainant said that she had not listed the
DFOD as a reference.
To establish a prima facie case of race, color, sex, age, or national
origin discrimination, a complainant must show the following: (1)
complainant was a member of the protected class; (2) an adverse action
was taken against complainant; (3) a causal relationship existed between
complainant's membership in the protected class and the adverse action;
and (4) other employees outside of complainant's protected class were
treated differently.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion, or in
reprisal is unlawful. To establish a prima facie case of harassment,
a complainant must show that: (1) s/he belongs to a statutorily
protected class; (2) s/he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment and (5) some basis exists to impute liability to the
employer, i.e., supervisory employees knew or should have known of the
conduct but failed to take corrective action.
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. A claim
of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he or she must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful in meeting its burden, complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for its action, the
factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis to the ultimate issue of whether complainant has shown by
a preponderance of the evidence that the agency's actions were motivated
by discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990). The burden
of persuasion that the agency discriminated against complainant always
remains with complainant.
Because this is an appeal from an agency decision issued without a
hearing pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is
subject to de novo review by the Commission. See 29 C.F.R. � 1614.405(a).
Upon review, the Commission agrees with the agency's finding of no
discrimination. Even assuming that complainant established a prima
facie case, the agency has articulated legitimate, nondiscriminatory
reasons for its actions in sending the electronic mail message which
complainant alleged resulted in her non-promotion and influenced the
selecting official's choice. Further, complainant has failed to present
evidence that more likely than not, the agency's articulated reasons for
its actions were mere pretext to mask unlawful discrimination. The record
reflects that the selection for the Program Analyst was made before the
electronic mail message was sent. Moreover, complainant has not shown
that the SDO whom she alleged slandered and defamed her had any knowledge
that complainant had applied for the position of Program Analyst or that
he had any contact with the selecting official. Complainant also has not
shown that the DFOD was contacted by the selecting official concerning
the position. The record also reveals that the SDO had given complainant
authorization to use his card for a purchase and that when he sent the
electronic mail in January 2003, he was simply inquiring about a credit
card purchase made on December 13, 2002, days after he had provided a
use authorization to complainant. We find therefore that the SDO was
not questioning complainant's integrity or harassing her by his actions.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 9, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Commission notes that complainant brought another discrimination
complaint against the agency (Agency No. ICE-04-E086). Complainant's
complaint in Agency No. ICE-04-E086 was amended to include the issue of a
hostile work environment while it was pending before an AJ. A decision
finding no discrimination was issued by the AJ and implemented by the
agency in a June 6, 2005 decision.
2The year of the letter was completely unclear.
3The record reflects that complainant requested the issuance of a decision
by the agency in a March 15, 2005 letter to the agency.